JUDGMENT
V.M. Kanade, J.
1. Appellant is challenging the judgment and order passed by the 7th Ad-hoc Additional Sessions Judge, Pune in Sessions Case No. 420 of 2002 dated 26/11/2002 whereby the appellant was convicted under Section 376(2) of the Indian Penal Code and was sentenced to undergo R.I. for seven years and to pay fine of Rs. 5,000/- and in default suffer S.I. for one year.
2. Prosecution’s case is that the daughter of the complainant while returning home after purchasing the vegetables from the market was called by the accused in his house and she accompanied the accused in his room on the first floor. Thereafter, the accused closed the door and committed rape on her and, thereafter, when the prosecutrix went back to her house, she narrated the incident to her mother. The incident in question is alleged to have taken place on 12/7/2002. Thereafter, the complainant had gone to see the accused and had give two slaps on his face and asked as to what he had done to her daughter. At that time, landlady Latabai Shedge and a neighbour Saira Bhabhi were present when the complainant told them what the accused has done to her daughter. Then she became unconscious and was taken to the hospital. After regaining the consciousness in the hospital, the complainant came back to the house and took her daughter to Dr. Sunita Jain and narrated the incident to her. After giving primary aid, the complainant was asked to go the Police Choki for lodging the complaint and a letter was given by Dr. Sunita Jain referring the prosecutrix to the Sasoon Hospital. The complainant went to the Police Station on 18/7/2002 i.e. after a lapse of six days. On 17/7/2002, the complainant had shown the prosecutrix to Dr. Pritish Aher and got sonography of the prosecutrix done. The report, thereafter, was submitted to Dr. Sunita Jain. Offence under Section 376, 377 of the Indian Penal Code was registered and the prosecutrix was referred to Sasoon Hospital for medical examination. The accused was arrested on 18/7/2002. The Investigation Officer completed investigation and a charge was framed against the accused under Section 376(2)(f) of the Indian Penal Code. The Trial Court convicted the accused under Section 376(2)(f) of the I.P.C. and sentenced him to undergo R.I. for seven years and to pay fine of Rs. 5,000/-. Against the said judgment and order, the appellant has preferred this appeal.
3. It is strenuously urged by the learned Counsel appearing on behalf of the appellant that there was a gross delay in filing the complaint which was not explained by the prosecution. He further submitted that the prosecutrix was not examined by the prosecution. It is submitted that the prosecutrix Ramiza was a child capable of understanding and was, therefore, a competent witness. He submitted that the finding given by the Trial Court accepting the explanation of the prosecution for non-examination of the prosecutrix was illegal. It is submitted that the conviction was based on mere suspicion and that there was no legal proof to sustain the order of conviction. It is submitted that the complainant made number of improvements in the case on material aspects. Further, it is submitted that there was a contradiction between the evidence of the complainant and her brother Razaaq – P.W.4. It is further submitted that the medical evidence did not support the prosecution’s case. The sonography report which was given to the Policy by P.W.4 was not even filed or proved by the prosecution. It is further submitted that the statements of Latabai Shedge and Baby Shedge were not recorded. It is further submitted that though the accused was sent for medical examination at Sasoon Hospital, the medical certificate was not obtained by the Investigating Officer. He further submitted that the prosecution also has not submitted the report of the Chemical Analyser in evidence. The learned Counsel appearing on behalf of the appellant – accused has also relied upon the number of judgments of the Apex Court as also of this Court.
4. The learned APP appearing on behalf of the State vehemently opposed the submissions made by the learned Counsel appearing on behalf of the appellant – accused. He submitted that the Trial Court has given cogent reasons for coming to the conclusion that the accused had committed the said offence. He submitted that delay in lodging the FIR was properly explained by the complainant who had stated that she was afraid about the defamation which would be caused to her daughter if the complaint was lodged. He submitted that the prosecutrix was six years old and the accused had raped her. The prosecutrix had informed this fact immediately to her mother who had gone to the room of the accused and had asked him as to what he had done to the prosecutrix. He submitted that the statement of the complainant was corroborated by the evidence of P.W. 2 – Dr. Sunita Jain as well as P.W.5 – Dr. Jyoti Kulkarni.
5. In the present case, the prosecution has examined six witnesses. P.W.1 is a complainant being the mother of the prosecutrix. The Trial Court has observed that the prosecutrix was called to the witness box and she was asked what was the date on the day of the incident. She has started crying and, therefore, the Trial Court feld that she was not a competent witness. Thus, there is no eye witness examined by the prosecution and the case of the prosecution rests entirely on the circumstantial evidence.
• P.W.1 – Mumtaz Shaikh in her evidence has stated that she was residing with her husband, daughter Ramiza and brother Razaaq. According to her, the incident in question took place on 12/7/2002 at 12.00 noon. She has stated that she had given some money to her daughter Ramiza and had asked her to bring Tomato and Chilli from the market. She has stated that her daughter came back after half an hour and she was crying. When the complainant asked her as to why she was crying, she informed her that when she came back from the market, the accused asked her to accompany him in his room and closed the door from inside, removed her neacker and also his underwear and, thereafter, he raped her. The complainant has stated that the accused had tried to have forcible sexual intercourse with the prosecutrix in her vagina and anus and, thereafter, the accused had taken a cloth and cleaned the private parts of the prosecutrix. The complainant has stated that she examined the private parts of the prosecutrix and found that it was wet. She immediately went down-stairs and the prosecutrix had shown the place where the offence had taken place. The accused was present and was putting on his pants. She, therefore, slapped on the face of the accused. By that time, her brother had come there and the landlady Latabai had arrived and she narrated the incident to both of them. She, thereafter, became unconscious and she regained consciousness in the hospital at 4.00 P.M. Thereafter, she had gone to the house and had applied coconut oil on the vagina and anus of the prosecutrix and that both her private parts were swollen. She had taken her to the hospital of Dr. Sunita Jain who had given medicine. Dr. Sunita Jain also gave her letter for taking the prosecutrix to the Sasoon Hospital. According to her, in order to avoid defamation, she did not take her daughter to the Sasoon Hospital or to the Police. She had stated that for about six days her daughter was having lot of pain and she was not in a position to sit. Thereafter, she was taken to the Hospital of Dr. Sunita Jain who advised that Sonography should be done. She gave letter referring the patient to Dr. Pritish Aher. Accordingly, sonography was done and the doctor said that her daughter was having an injury on her private parts. She, therefore, decided to file complaint and accordingly lodged a complaint at Yerawada Police Station on 18/7/2002. From the evidence of P.W.1, it is clear that she has not witnessed the incident but has stated that she has narrated the incident to the landlady Latabai and to her brother Razaaq.
• P.W.2 – Dr. Sunita Jain has stated that the maternal uncle of the girl and the landlady Lata Shedge brought the girl to her clinic and the doctor was informed that the girl was raped. P.W.2 – Dr. Sunita Jain advised them to take her to the Sasoon Hospital and a note in writing was given by her which is exhibited at Exhibit-16.
• Prosecution has examined P.W. 4 – Razaaq Shaikh. The witness was shown the portion marked “A” from the Police Statement in which he has stated to the Police that when he had gone to the house of the complainant, nobody was present there. Similarly, the witness was also shown the portion marked “B” in which he has admitted that he has not stated to the police that Ramiza had narrated occurrence to him. Similarly, two other omissions were marked as “C” and “D”. These portions were proved by showing the same to the Investigating Officer Shri Dnyaneshwar Tukaram – P.W.6 and they were exhibited at Exhibits 27 to 30. From the evidence of Razaaq, it appears that there are lot of contradictions between his statement and the statement of the complainant. Razaaq, therefore, has not corroborated the statement of the complainant and, there are material omissions and contradictions in his statement. It is, therefore, difficult to accept his testimony.
• Prosecution has, thereafter, examined P.W.5 – Dr. Jyoti Kulkarni. She has stated that there were no external injuries on the private parts of the patient and she was told that the accused had called the patient inside his house and had attempted sexual intercourse with her. She has stated that the patient was having pain in separating her legs and that the hymen of the prosecutrix was not in torn condition in 3 O’clock condition and it had healed. There was also old healed tear in posterior forthette. Therefore, she gave a certificate that an attempt of forcible vaginal intercourse was made. The certificate given by Dr. Jyoti Kulkarni shows that there was no injuries on the private parts.
6. Thus, the entire evidence against the accused is in the form of circumstantial evidence of P.W.1 – complainant who has stated that she was informed by her daughter about the said incident and she had taken her to Dr. Sunita Jain. This doctor did not examine her immediately but referred her to Sasoon Hospital. On perusal of Exhibit-16 which is a letter of reference by Dr. Sunita Jain, there is no reference of the alleged history of rape. In fact, Exhibit-16 does not state anything about the condition of the girl or the complaint made by her maternal uncle Razaaq. Thereafter, they did not take the prosecutrix to any doctor for about five days and on 17/7/2002 she was taken to Dr. Aher who has done sonography of the prosecutrix. This sonography report also is not produced on record by the prosecution. The prosecution has also failed to examine Dr. Aher who would have been the important witness to corroborate the case of the complainant as the complainant in her evidence has stated that Dr. Aher told her that there was injury on the private part of the prosecutrix, after the sonography was done. Prosecution, very strangely, has not examined this witness. From the evidence of Dr. Jyoti Kulkarni also, there is nothing to indicate that there were any injuries on the person of prosecutrix. Tear of her hymen also appears to have healed and only on the basis of tear, it cannot be said that there was an attempt to commit forcible intercourse. prosecution has also not examined Lata Shedge, the landlady or Sira the neighbour of the complainant who would have corroborated the testimony of the complainant. Apart from that, crucial evidence of medical certificate of the accused also has not been brought on record, though the accused was referred for examination to the Sasoon Hospital. Apart from that, the prosecution has not examined the prosecutrix who appears to be a child and who understands the things which are to be done which is evident from the fact that the complainant had told her daughter to bring Tomato and Chilli from the market. Her evidence was crucial and it would have thrown some light on the alleged incident. The Chemical Analyser’s report does not support the prosecution’s case. The Trial Court has discarded the contradictions and omissions in the statement of P.W.1 by holding that the complainant was not conversant in Hindi or Marathi and that her statement was recorded in Hindi and, therefore, the omissions and contradictions which were brought in the evidence of P.W.1 and P.W.4 have not been considered by the Trial Court. The Trial Court has convicted the accused only on the basis of evidence of P.W.1 and the evidence of Dr. Jyoti Kulkarni.
7. In my view, it is difficult to accept the case of the prosecution. In the first place, the prosecution has not produced Chemical Analyser’s report. The clothes of the victim were seized after 10 days. Similarly, the clothes of the accused were seized after 9 days. The Chemical Analyser’s report is not produced. The Trial Court has come to the conclusion that non-production of the Chemical Analyser’s report is inconsequential. In my view, this finding cannot be sustained. It is the duty of the prosecution to prove its case beyond the reasonable doubt. In the present case, there are ample contradictions in the story of the P.W.1 and P.W.4 which indicate that it is difficult to accept their testimony. Apart from that, the conduct of P.W.2 – Dr. Sunita Jain also is not normal. The prosecutrix was taken to P.W.2 – Dr. Sunita Jain immediately on the same day by P.W.4 Razaaq and Lata Shedge who has not been examined. Normally, any doctor who is informed that the young girl of 6 years of age is raped, would immediately examine the patient. In this case, Dr. Sunita Jain had stated that she did not examine the patient and she did not have any special facilities. This appears to be rather unusual. It was possible for Dr. Sunita Jain to externally examine the patient and prescribe medicine. She, however, has referred the patient to the Sasoon Hospital vide letter at Exhibit-16. On perusal of this letter, it is surprising that it is no where mentioned that the patient who is being referred had complained of rape having been committed on her. This letter Exhibit-16 is absolutely silent about the commission of the said offence. Thereafter, Dr. Aher had done sonography on the girl on 17/7/2002 and who has stated that there was an injury to her private part. However, the prosecution has not produced the report of the sonography and has not examined Dr. Aher. Thus, in my view, there are number of missing links in the prosecution case. The medical certificate of the accused is also not brought on record. The Trial Court has observed that the Investigating Officer P.W.6 had done the investigation half heartedly. The Trial Court has observed that the benefit of this should not be given to the accused. In view of this it is difficult to accept the testimony of P.W.1 and, therefore, the accused is entitled to be benefit of doubt.
8. Accordingly, the following order is passed:-
ORDER
• In the result, appeal is allowed. Order of the Trial Court is set aside. Appellant – accused is acquitted of the charge levelled against him. Appellant is in jail from 18/7/2002. Appellant to be released forthwith unless he is required in any other case.